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Constitutional Petitions Nos. D‑752 and D‑791 of 1987, decided on 17th August, 1987.

‑‑‑S. 3(1)‑‑Detention order mentioning as ground of detention that the "detenu is dangerous as to render his being at large, hazardous to the community and society, he is also desperate and dangerous"‑ Contention that detention order was vague and mechanical and further that detaining authority had not applied its mind inasmuch as there was no material before it except alleged report of Deputy Superintendent of Police, Crimes Branch to Deputy Commissioner that the detenu was suspect of bomb blast cases‑‑Held, contention was correct; perusal of detention order indicated the grounds to be vague; there was even no indirect reference in the order that the detenus were suspect in bomb blast cases; in the letter by D.S.P. addressed to D.C. reference to bomb blast was made but same was not reflected in the order of detention; further the Government did not place any material on record to indicate that the detaining authority had applied its mind to facts of case and so it was evident that the orders were issued mechanically.

Faqir Imdad Ali v . The District Magistrate Khairpur and 2 others P L D 1987 Kar. 530; Liaquat Ali v. Government of Sind PLD 1973 Kar. 78; Ghulam Jilani v . Government of West Pakistan P L D 1967 S' C 373; P L D 1984 Lah. 222; P L D 1985 Quetta 217 & P L D 1987 Quetta 13 Ref.

‑‑‑S. 3(1) & (2)‑‑Marked distinction between provisions of two subsections of S.3‑‑Provisions of subsection (1) of S.3, provide that if the Government is satisfied that with a view to prevent any person from acting in any manner prejudicial to public safety or order, the Government may by order in writing direct arrest and detention in such custody as may be prescribed under subsection (7) of S.3 for period specified therein, whereas subsection (2) of S.3, provides that if any servant of Government authorised in this behalf has reason to believe any person within his territorial jurisdiction to have acted, is acting or about to act in any manner prejudicial to public safety or public order he shall forthwith refer matter to Government for orders.

‑‑‑S. 3(1)‑‑Detention‑‑Suspicion‑‑Whether a person can be detained on basis of a mere suspicion‑‑Held, even if a person were to be detained on suspicion that suspicion should be based on some material‑‑Suspicion simpliciter without any material whatsoever to back such suspicion may not be sufficient ground of‑detention not only under subsection (1) but even under subsection (2) of S.3 of Ordinance.

‑‑‑S. 3(1)‑‑Principles of law relating to order of detention, stated.

P L D 1973 Kar. 694 ref.

‑‑S. 3(1)‑‑West Pakistan Public Order Detenu Rules, 1962, Rr. 2, 3 & 4‑‑Detention order purporting to entrust custody of detenus, instead of a jail to police even without specifying police station‑‑Effect‑ Provisions of subsections (1)(2) & (7) of S.3 are to be read with the Rules‑‑Detenu under the Ordinance is either kept in jail as defined under subsection (1) of S.3 of Prisons Act, 1894 or any place which has been declared by Government by general or special order to be subsidiary jail‑‑Detenu cannot, therefore, be detained in a place which is exclusively in control of the police‑‑Where in a detention order, even the police station had not been specified and custody given to Police who had the option of shifting detenus from one place to another, such order, held, was contrary to the Rules.

‑‑‑S.3(1) & (10)‑‑Detenu can be interrogated by Police in terms of subsection (10) of S.3‑‑Order for interrogation should be passed by Magistrate or any other Government servant duly authorised after applying his mind.

‑‑‑S. 3(1)‑‑Detention order on ground that detenus involved in bomb blast cases‑‑Competent authority could take action against them under appropriate law‑‑Detention order under Ordinance, in such circumstance, held, could not sustain.

A. Hafeez Lakho assisted by Raza Rabbani for Petitioner.

A.A. Mohammadally,Addl. A.‑G, for Respondents.

Dates of hearing: 11th and 12th August, 1987.

‑‑By this common judgment, we intend to dispose of the above two petitions as the learned counsel for the petitioners and Mr.A.A. Mohammadally, learned Additional Advocate- General have requested that the arguments advanced in Constitutional Petition No. D‑752 of 1987 may be treated as arguments in Constitutional Petition No. D‑791 of 1987.

The Constitutional Petition No. D‑752 of 1987 has been filed by the father, Umrao Ali of the detenu namely, Saeed Ahmed son of Umrao Ali, impugning the order of detention for a period of 30 days, passed on 19‑7‑1987 by the District Magistrate, South, Karachi under subsection (1) of section 3 (though mentioned as section 1) of the Maintenance of Public Order Ordinance, 1960, hereinafter referred to as the Ordinance, which reads as follows:

"WHEREAS, I Shahid Hamid, Deputy Commissioner & D.M. (S) Karachi, am satisfied on the basis of information placed before me by Deputy Superintendent of Police, Crime Branch, Karachi that Saeed Ahmad alias Saeed Kalia s/o Umrao Ali r/o, 107 Naqi Para, Usmanabad, Karachi Vice‑President P.P.P. District South is a suspected terrorist and his activities are prejudicial as defined under Maintenance of Public Order it is. necessary to order detention of the said Saeed Ahmed alias Saeed Kalia.

NOW, THEREFORE, in exercise of the powers conferred under section 3(1) of the Maintenance of Public Order Ordinance 1960 read with Government of Sind Notification NO.11(14)SOJ/78 dated 15‑6‑1978, I do hereby order that the said Saeed Ahmad alias Saeed Kalia shall be detained in police custody for a period of 30 (Thirty) days.

The ground of the order are:

He is dangerous as to render him being at large is hazardous to the Community and Society. He is also desperate and dangerous.

He is at liberty to prefer an appeal to the Government of Sind against this order.

(Sd.)

(Shahid Hamid)

District Magistrate & D.C. (South)

Karachi"

19‑7‑1987

Whereas Constitutional Petition No. D‑791 of 1987 has been filed by one Ibrahim, brother of detenu, namely, Ali Sonara son of Issa challenging the detention order dated 21‑7‑1987 passed by D.M., South, under subsection (1) of Section 3 (though mentioned as Section 1), of the Ordinance for a period of 30 days, which reads as follows:‑

"WHEREAS, I Shahid Hamid, Deputy Commissioner & D.M. (S) Karachi, am satisfied on the basis of information placed before me by Deputy Inspector‑General of Police ‑Crime Branch Karachi, that Ali Sonara s/o Isa r/o Dulagm Building, Flat 2nd floor near Kakri Ground P.S. Napier Karachi is a suspect terrorist and his activities are prejudicial as defined under Maintenance of Public Order it is necessary to order detention of the said Ali Sonara.

NOW, THEREFORE, in exercise of the power conferred under section 3(1) of the Maintenance of Public Ordinance 1960 read with Government of Sind Notification No.1l (14)SOJ/78 dated 15‑6‑1978, 1 do hereby order that the said Ali Sonara shall be detained in police custody for a period of 30 (thirty) days.

The grounds of the order are:

He is dangerous as to render him being at large is hazardous to the Community and Society. He is also desperate and dangerous.

He is at liberty to prefer an appeal to the Government of Sind against this order."

2. In support of Constitutional Petition No. D‑752 of 1987, Mr. Abdul Hafeez Lakho, learned counsel for the petitioner assisted by Mr. Raza Rabbani, Advocate has urged as follows:

(i) That the grounds mentioned in the detention order are vague, and that in fact the order is mechanical order.

(ii) That the detaining authority has not applied its mind inasmuch as there was no material before it except the alleged report of the Deputy Superintendent of Police, Crimes Branch.

(iii) That the detention order is bad as it purported to entrust the custody of the detenu to the police even without specifying the police station instead of a jail.

(iv) That the detention order is bad as it has been passed in order to interrogate the detenu on account of suspicion in respect of the alleged FIRs registered, which is not warranted.

On the other hand Mr. A.A. Mohammadally, learned Additional Advocate‑General has submitted as under:

(i) That a person can be detained under the Ordinance even on the basis of suspicion.

(ii) That the grounds given in the detention order are not vague.

(iii) That by virtue of subsections (3) and (7) of section 3 of the Ordinance a detenu can be entrusted to the police by the detaining authority.

(iv) That under subsection (10) of section 3 of the Ordinance a detenu can be interrogated.

3. It may be observed that Constitutional Petition No. D‑752 of 1987 was admitted by a Division Bench of this Court headed by the Hon'ble Chief Justice by an order dated 27‑7‑1987 and the case was fixed for regular hearing for 4‑8‑1987. On the later date, when the above case had come up for hearing, before us Mr. A.A. Mohammadally, learned Additional Advocate‑General requested for time for ascertaining, whether the detenu had been released or not and the case was adjourned to 10‑8‑1987. On the latter date Mr. A.A. Mohammadally again requested for one day's time for production of material. We adjourned the case to 11‑8‑1987. On the latter date the learned A.A.‑G. submitted that he had not been furnished with any material by the detaining authority and that he had been told that the detenu was under interrogation by five different agencies in connection with the bomb blast case of Karachi, Bohri Bazar. However, we adjourned the above case with the direction to produce the report of the Deputy Superintendent of Police, referred to in the detention order dated 19‑7‑1987, quoted hereinabove. A photostat copy of a letter dated 18‑7‑1987 from the Deputy Superintendent of Police, Crimes Branch addressed to the Deputy Commissioner, District South Karachi, was produced on the above date. A photostat copy of the letter dated 21‑7‑1987 of the Deputy Inspector‑General of Police, Crimes Branch, Sind, Karachi addressed to the Deputy Commissioner/ D. M., Karachi (South) was filed on the direction of the Court on 13‑8‑1987. The above letters read as follows:

"OFFICE OF THE DY. SUPDT. OF POLICE CRIME BRANCH, KARACHI. NO.DSP/CB/767/1987, KARACHI, Dated 18‑7‑1987.

To,

The Deputy Commissioner District South, Karachi.

Sub: DETENTION ORDER UNDER M.P.O.

The investigation of bomb blast cases of Police Stations A/Maidan and Saddar bearing FIR Nos.254/87 U/S 302/307/436/427/34, P.P.C. R/W 3/5 EXPLOSIVE SUBSTANCE ACT & 170/87 U/S 302/307/436/427/34 PP.C. R/W 3/5 Explosive Substance Act respectively has been transferred to Crimes Branch, Sind.

One Saeed Ahmed alias Saeed Kalia s/o Umrao Ali r/o 107 Naqi Para, Usmanabad, Karachi Vice President PPP District South is a suspected terrorist and his activities are prejudicial as defined under Maintenance of Public Order Ordinance. In order to desist him from prejudicial acts and for his thorough interrogation, Detention order U/S 3 of M.P.O. Ord. may kindly be issued for 30 days and he may be lodged with police for the interrogation.

(KUNWER SHAH MOHAMMAD)

Dy. Superintendent of Police, Crimes Branch,

Karachi."

From:‑The Dy. Inspector‑General of Police,

Crimes Branch, Sind, Karachi.

To:‑ The Deputy Commissioner/ D. M.,

Karachi (South),

Karachi.

No. DIG / C . B . / /1987, Karachi, dated: 19‑7‑1987.

Sub:

The investigation of bomb blast cases of Artillery Maidan and Saddar Police Station has been transferred to this Agency. During the investigation of the above case, it is found that one Ali Sonara s/o Issa R/o Yahya Building Flat 2nd floor near Kakri Ground P.S. Napier, Karachi is a suspected terrorist and his activities are prejudicial as defined in Section 3 of M.P.O. Ordinance. He is also required in connection with the following cases:

(1)Case FIR No.254/87 U/s 302/307/436/427/34, P.P.C. Read with 3/5 Explosives Substance Act of P.S. A/Maidan.

(2) Case FIR No.170/87 U/S 302/307/436/427/34, P.P.C. R/W 3/5 Explosives Substance Act of P.S. Saddar:

(3) FIR No. 26/78 U/S 14 MLR P.S. Baghdadi. One year R.I. & 15 L. in order to desist him from prejudicial acts and for his thorough interrogation, detention order U/S 3 of M.P.O. Ordinance may kindly be issued for 30 days and he may be lodged with police for the interrogation i.e. with Crimes Branch.

Sd/

Dy. Inspector‑General of Police,

Crimes Branch, Sind, Karachi."

The learned Additional Advocate‑General has not placed the file containing the order of the District Magistrate in order to show that factually he has applied his mind to the facts of the case. It appears that in response to the above request the impugned detention orders were passed. It is noteworthy that in none of the above‑quoted detention orders the factum that the detenu was a suspect in bomb blast case has been mentioned. The ground mentioned is that the "detenu is dangerous as to render his being at large is hazardous to the Community and Society. He is also desperate and dangerous."

Mr. Lakho has referred to the following cases in support of his above first two submissions:

(i) Faqir Imdad Ali v. The District Magistrate Khairpur and 2 others P L D 1987 Kar. 530 in which one of us, Sajjad Ali Shah, J. sitting with Nasir Aslam Zahid, J. after referring to the case of Liaquat Ali v. Government of Sind P L D 1973 Kar. 78, restated the principles of law succinctly enunciated in the above‑reported case and inter alia, observed as follows:

"For the facts and reasons stated above, we are of the view that in this case impugned order of detention has been passed without judicial application of mind in which allegations made are vague in nature and material relied upon is inadequate and is not enough, on the basis of which a reasonable person could be satisfied for passing order of detention. We are also of the view that this order of detention has been passed with mala fide intention. We, therefore, quash the impugned order and declare that the same was passed without lawful authority and is of no legal effect. In the result, this petition is allowed."

(ii) Liaquat Ali v. Government of Sind through Secretary, Home Department and another reported in P L D 1973 Kar.78referred to hereinabove in which a Division Bench of erstwhile High Court of Sind and Baluchistan referred to most of the case‑law on the question of detention and the principles of law laid down by the Hon'ble Supreme Court of Pakistan in Ghulam Jillani v . Government of West Pakistan P L D 1967 S.C. 373 were re‑enunciated and it was held that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to file representation before authority prescribed by law and that the grounds of detention should be within the scope of law relating to preventive detention and should not be irrelevant to the aims and objects of the same. It was also reiterated that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice. It was also held that the fact that the person being liable to prosecution for commission of offence in ordinary criminal Courts cannot be a ground of preventive detention under the Ordinance.

(iii) Muhammad Younus v. Province of Sind through the Secretary to the Government of Sind, Home Department, Sind Secretariat, Karachi and 2 others reported in P L D 1973 Kar. 694, in) which the following principles of law were reiterated on the basis of the cases referred to in the above judgment:

(i) That a citizen is to be treated in accordance with law;

(ii) That superior Courts are competent to determine, whether executive authorities have acted without lawful authority;

(iii) That the whole material upon which detention order was passed should be placed before the Court and the Court alone is to determine the question of privilege in regard to a document being privileged;

(iv) That ascertainment of reasonableness of grounds is a judicial or quasi‑judicial process;

(v) That the authority passing the order of detention should apply its mind before taking action;

(vi) That the satisfaction of detaining authority connotes a state of mind bordering on conviction;

(vii) That the Superior Courts are competent to inquire into bona fides of action taken;

(viii) That detention would be illegal if out of several grounds of detention any one ground is found to be bad;

(ix) That the grounds of detention communicated to a detenu must contain particulars of facts and should not be vague;

(x) That vagueness in grounds infringes statutory requirements.

(IV) Maulana Shah Ahmad Noorani v. Government of the Punjab, reported in P L D 1984 Lah. 222. In the above case a learned Single Judge of the Lahore High Court while construing section 5 of the Ordinance held that on account of vagueness, the order vitiated.

(V) Muhammad Khan v. State through Deputy Commissioner, Nasirabad at Dera Murad Jamali and 2 others, reported in PLD 1985 Quetta 217, in which a Division Bench of the Baluchistan High Court to which one of us (Ajmal Mian, J) is a party, held that the detention order was illegal on account of omission on the part of the detaining authority to furnish the grounds of detention to the detenu.

(VI) Bahar Khan v. Inspector‑General, Frontier Corps at Quetta and 3 others, reported in P L D 1987 Quetta 13. In the above case a Division Bench of the Baluchistan High Court of which one of us (Ajmal Mian, J.) was a party, inter alia observed that where the grounds are vague, detention order cannot be sustained. However, on merits the petition was dismissed and the following observations were made:

"We may observe that a Court will be slow to interfere within a detention case, in which, the impugned order seems to be bona fide and the material placed before the Court indicates that the detenu may indulge in the activities prejudicial to the integrity and, security of Pakistan."

4. A perusal of the above‑quoted detention orders indicate that the grounds are vague. There is even no indirect reference that the detenus were suspects in the bomb blast case. No counter‑affidavit has been filed by the official respondents, though as pointed out hereinabove Constitutional Petition No. D‑752 of 1987 was adjourned several times by the 'Court. In the above‑quoted two letters addressed to the Deputy Commissioner/ District Magistrate by the Deputy Superintendent of Police and Deputy Inspector‑General of Police, reference to the bomb blast case has been made but the same is not reflected in the detention orders. Furthermore, as pointed out hereinabove the respondents have not placed any material on record to indicate that the detaining authority had applied its mind to the facts of the present case, on the other hand A is evident that the impugned orders were issued mechanically.

Referring to Mr. A. A. Mohammadally learned Additional Advocate‑General's contention that a person can be detained on the basis of suspicion, it may be observed that there is a marked distinction between subsection (1) and subsection (2) of section 3 of the Ordinance, whereas under the former subsection if the Government (which will include Deputy Commissioner, District Magistrate in view of delegation of powers under section 26 of the Ordinance) is satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7) for the period specified therein, whereas under subsection (2) of the Ordinance if a District Magistrate or any other servant of Government authorised in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for orders. The impugned orders have not been passed under subsection (2) by the Provincial Government upon a reference made by the District Magistrate or any other servant of Government authorised on that behalf, but, have been passed under subsection (1) of section 3 by the District Magistrate/ Deputy Commissioner as delegatee of the Government. Even otherwise, suspicion should be based on same material. Simpliciter suspicion without having any material whatsoever to back such a suspicion may not be sufficient ground of detention even under subsection (2) of section 3 of the Ordinance.

5. Reverting to the last two submissions of Mr. Lakho that the detaining authority should not have entrusted the custody of the detenus to the police custody for interrogation, it may be pertinent to point out that under subsection (1) of section 3 the detaining authority has been authorised to order detention of a detenu in such custody as may be prescribed under subsection (7) of the said section, whereas clause (a) of subsection (3) of section 3 provides that a police officer while executing an order passed under subsection (1) of section 3 shall commit the arrested person to such custody as may be prescribed under subsection (7) of the said section. It may be pertinent to observe that subsection (7) of section 3 provides;

"So long as there is in force in respect of any person an order under this section directing that he be detained, he shall be liable to be detained in such custody and under such conditions as to maintenance, discipline and punishment for offences and breaches of discipline as Government may from time to time prescribe by general or special order."

It is true that if the above three subsections of section 3 of the Ordinance are to be read in conjunction, the detaining authority has been authorised to specify in whose custody the detenu is to be kept. However, the above provisions are to be read with the statutory rules which have been framed under section 27 of the Ordinance by the Governor through Notification No. 8‑41‑H‑SP1‑1/57 dated 8‑5‑1962, which are called West Pakistan Public Order Detenu Rules, 1962, hereinafter referred to as the Rules. Clause (a) of rule 2 defines "detenu" means any person detained in custody under the provisions of section 3 of the Ordinance, whereas clause (c) defines "Director" means the Director of Prisons in charge of the Region in which any detenu is detained, clause (e) of rule 2 gives the definition of the word "Jail" means any prison as defined in subsection (1) of section 3 of the Prisons Act, 1894 and includes any place which has been declared by Government by general or special order to be a subsidiary Jail. Rule 3 provides that the detenus shall be kept in association wards, or, if that be not possible or convenient in cells, and shall be allowed to associate freely with one another, but as far as possible Separate from ordinary prisoners. It further provides that the Superintendent (who has been defined in clause (g) of Rule 2 as means the Superintendent Incharge of the Jail in which any detenu is detained) may confine any particular detenu or any class of detenus separately, if he considers it desirable on grounds of health or for any other sufficient reason. Whereas rule 4 provides that there shall be two classes of detenus, namely Class I and Class 11 and in no case a detenu can be treated as a 'C' Class prisoner. The other rules inter alia, deal with diet, clothing, periodical reports regarding detenus, funds, searches, photograph and fingerprints of the detenus, interview, lists of persons approved for interviews, application for, interviews, duration of interviews, discipline, breaches of discipline etc.

A perusal of the above rules clearly demonstrates that a detenu under the Ordinance is either to be kept in a jail as defined under subsection (1) of section 3 of the Prisons Act, 1894, clause (a) of which excludes any place for the confinement of prisoners who are exclusively in the custody of the police, and, any place which has been declared by the Government by general or special order to be a subsidiary jail. It is, therefore, evident that a detenu under the Ordinance cannot be detained in a place which is exclusively in control of the police. In the instant case, it may again be pointed out that under the impugned detention orders even the police station has not been specified and the custody has been given to the police, who has the option to keep on shifting the detenus from one place to another which appears to be contrary to the Rules. In this behalf reference may be made to Rule 37 of the Rules which provides the manner of shifting a detenu from the jail to the hospital for treatment whereas Rule 39 prescribes the manner of production of a detenu in a Court.

We may observe that in Constitutional. Petition No. D‑755 of 1987 decided by us on 11‑8‑1987, we have made the following observations:

"However, we may observe that as per rules a detenu under the M.P.O. is to be kept in jail in terms of clause (a) of Rule 2 of the Rules and not at any police station. Mr.A.A. Mohammadally learned A.A.‑G ., has not been able to show any Rule contrary to clause (e) of Rule 2 and Rule 3 of the Rules."

6. Adverting to the second limb of the above arguments that the detenu cannot be entrusted for the purpose of interrogation to the police, it may be observed that we have already held that a detenu cannot be entrusted to the police custody. However, under subsection (10) of section 3 the District Magistrate or any servant of the Government referred to in subsection (2) has been authorised to summon or cause the summoning of a detenu for interrogation, if in his opinion such interrogation is likely to lead to the discovery of information which may enable the more effective exercise of powers under the Ordinance, whether in respect of the person interrogated or any other person, and the person interrogated under the above subsection is bound to answer truthfully all questions pertaining to the subject of the enquiry.

We are, therefore, inclined to hold that a detenu can be interrogated in terms of above subsection (10). But there should, therefore, be an order for interrogation to be passed by the District Magistrate or any other servant of the Government referred to in' above subsection (10) after applying his mind.

7. Before parting with the above discussions, we may observe that we have pointed out to the learned Additional Advocate‑General that factually if the detenus are involved*in bomb blast cases, there was nothing to prevent the competent authority to take action against them under the appropriate substantive law, but a detention order under the Ordinance cannot be sustained unless it complies with the requirements of law as enunciated by the Superior Courts in stream of cases relating to a period of more than two decades.

8. For the foregoing reasons, we allow the above petitions and declare the impugned orders as without lawful authority and of no legal effect. The detenus shall be released forthwith unless they are required in connection with some other case.

K.B.A./U‑12/ K Petition accepted.

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